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  • Dean Smith

Cohabitation’s Role in Determining New Jersey Alimony

Following a divorce, alimony is often part of the fallout. One of the parties ends the relationship with a legally binding agreement to make financial payments to their former spouse; a source of agitation for many payors.

Alimony is evaluated through numerous factors, such as length of the marriage and each spouses’ income potential, and typically ends following a new marriage by the recipient or a termination clause both spouses agreed on, e.g. length of time after divorce.

Perhaps the most contentious situation that arises is when a payor learns, or suspects, the alimony recipient has begun a serious relationship with a new partner, and the couple is now sharing a full-time residence without the hindrance of a marriage. It’s an old story. The payor must meet their financial legal obligation, and thereby support their ex-spouse despite the new relationship.

Oftentimes, the ex-spouse’s new relationship and housing arrangement meets the criteria for “cohabitation,” and alimony recipients frequently conceal their new status to keep the spousal support payments rolling in. This is particularly true in New Jersey where alimony can be suspended, terminated, or modified, if the payor can prove the ex-spouse is cohabitating with another individual.

The New Jersey Definition of “Cohabitation”

The State of New Jersey views cohabitation as a partnership status that includes more than sharing a residence or sexual experiences. Cohabitation “involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” (NJ Rev Stat § 2A:34-23)

When evaluating a relationship to determine whether the partnership meets the definition for cohabitation, the courts examine numerous criteria, including:

Combined finances between the couple

The sharing of household chores

Whether the couple shares a residence and regularly interacts in a social manner;

Relationship length

Shared living expenses

Whether family and friends acknowledge the pair as a couple

Whether the couple have a promise of support between them

Any other demonstrable evidence the court finds significant to determine whether the couple is cohabitating

Provided a court agrees that an ex-spouse is cohabitating with another individual, it is possible to reduce or eliminate alimony payments. The key, however, is proving whether the ex-spouse has entered such an arrangement, and the judge who evaluates the relationship will render a decision based on the evidence a payor submits.

Building a Compelling Case

Thus, alimony recipients typically deny they are cohabitating with another individual, preventing the termination of their support payments. In New Jersey, this means that a payor must prove, to a judge’s satisfaction, that their ex-spouse new relationship meets the criteria for cohabitation.

A payor who suspects his ex-spouse is cohabitating often turn to private investigators to gather demonstrable evidence, such as video of the couple in social activities, performing household chores, or shopping for groceries together. This can be a powerful first step for a payor, who can then submit an alimony modification petition, along with their “prima facie” evidence to show that the ex-spouse is demonstrating the appearance of cohabitation. Provided the court agrees this evidence is strong enough, a judge may grant a period of discovery, and a payor can use this time to develop more conclusive evidence through private investigation or through an examination of the ex-spouse’s financial records.

Throughout this time, professionals can gather key evidence, for example:

Private investigators can monitor social media feeds, capture compelling video of the couple, and establish strong evidence of cohabitation activity

Forensic accountants can evaluate financial statements, examine altered financial practices, and establish a record of shared financial responsibility

The New Jersey Alimony Reform Act of 2014

Following the New Jersey Alimony Reform Act of 2014, an alimony recipient does not have to share a residence for a relationship to meet the criteria for “cohabitation.” This alleviated the payor’s burden of proof, but simultaneously strengthened the relevance of proving that an ex-spouse is sharing a residence with an intimate partner. While it is no longer required to show the ex-spouse is living with the new partner full-time, when a payor can demonstrate such, the evidence is profoundly compelling to the judge who is evaluating the case.

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